NO. 81-220 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

JOSEPH RAYMOND CARTWRIGHT, 

Defendant and Appellant. 

Appeal from: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln 

Honorable Robert Holter, Judge presiding. 

Counsel of Record: 

For Appeilant: 

David W. Harman argued, Libby, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike McGrath argued, Assistant Attorney General, 

Helena, Montana 

b7illiam A. Douglas, County Attorney, Libby, Montana 

~h&n Thompson argued, Helena, Montana 

Submitted: June 22, 1982 

Oecided : August 25, 1982 

Fiied:, ,id3; ,J 3 t98L 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Joseph Cartwright was convicted of deliberate homicide and 

attempted deliberate homicide following a jury trial in the 

Nineteenth Judicial District, State of Montana, in and for the 

County of Lincoln. Cartwright was sentenced to thirty-five years 

imprisonment on each count; the sentences to run concurrently. 

From the foregoing convict ion he appeals. 

Prior to this unfortunate incident the defendant, Joseph 

Cartwright, and the deceased, Pamela McCully, lived together for 

almost four years. Their relationship began to deteriorate, and 

on April 11, 1980, an incident occurred which resulted in the 

death of Pam McCully and the serious wounding of Pat McCully. 

That day, Cartwright returned home to find that several of his 

guns were missing. He learned from a houseguest that Pam McCully 

had been there earlier and had gained access through a livingroom window. Missing were a ,308, a .30-30, a .14, a ,410 

shotgun, and a .357 magnum pistol with holster. Cartwright was 

angry, and in his anger he "slugged the wall" and created a hole. 

The houseguest testified that he stated his intentions, "to go up 

there and see if I can get my guns back and I am going to shoot 

her." 

Pamela McCully and several other members of her family were 

fifty miles away near Trego at the residence of Retha McCully, 

Pamela's mother. Cartwright got in his car and drove to Trego. 

He took with him a loaded .22 caliber semi-automatic rifle, the 

only gun that had not been taken by Pamela McCully. On the way 

to Trego, Cartwright consumed three beers. He arrived at 

approximately 6:00 p.m. He pulled his car into the yard, 

stopped, and left the motor running. He remained in his car. 

Pamela McCully came out of the house and the two began to argue. 

After a few minutes McCully went back in the house to get some 

cigarettes. She told her mother that "Joe had a gun out there." 

Nonetheless she went back outside and on the way to Cartwrightls 
car she picked up a broken cue stick that had been laying in the 

yard. The two continued to argue. At about this time Bud 

McCully, his wife Debbie, and their two children came out of the 

house and were preparing to leave. Cartwright called Bud McCully 

over to the car and stated, "make her give me my stuff back." 

Bud McCully did not respond but was irritated by the manner in 

which his sister Pamela was tapping the broken cue stick on the 

car. He told her to stop and walked away. 

At this point the facts are conflicting. The situation began 

to move rapidly. Several witnesses testified that Cartwright 

threatened Pamela McCully; stating "you have got twenty-four 

hours to live." Pat McCully then approached the car and 

chastised Cartwright for talking to his sister that way. Pat 

McCully testified that he then hit Cartwright in the jaw with his 

right fist. Cartwright reportedly said, "don't hit me Pat." The 

.22 caliber rifle that had previously been pointing toward the 

floorboard was pointing out the window. A struggle ensued. Both 

Pat and Pam McCully were holding on to the barrel. The barrel 

was "tipped up" and Pat McCully was shot in the stomach. After 

being shot he scrambled into the house. Then, according to 

testimony of Retha McCully, "he [Cartwright] just turned the gun 

on Pam and shot her." She was not holding on to the barrel when 

she was shot. Retha McCully further testified that when Pamela 

was shot "her neck went back and she kind of staggered forward 

and then he shot again and she slumped down on his arm because he 

had his arm out the window." Blood stains were found on the 

defendant's left shirt sleeve, on a blanket used to cover the car 

seat, and on the side of the defendant's car door. A forensic 

scientist testified that all three blood samples were consistent 

with Pamela McCully's blood type. 

Pamela ' s death was instantaneous. The bullet transected the 

upper portion of the spinal cord. The defendant's rifle was 

loaded with .22 caliber hollow point or "dum dum" bullets. 

According to testimony "a hollow point bullet, when striking 
bone, tends to mushroom and fragment. . .and in this case there 

was an extensive fragmentation of the bullet structure ." 

Approximately 30 fragments of lead were removed from the neck 

area. 

An instant later, Mike McCully came out of the house with a 

.308 caliber rifle. He aimed the rifle but Retha McCully pushed 

his aim into the air as he fired. A neighbor testified that 

after hearing one loud shot from a heavy-caliber rifle, he heard 

another volley of small caliber fire; this being Cartwright who 

stopped at the cattle guard on his way out to fire back at the 

house. Investigators found .22 caliber shell casings on the 

ground near the cattle guard. 

The defendant's version of the incident varies. The defendant testified that he did not threaten Pamela McCully with the 

statement that she had twenty-four hours to live; rather he 

stated "she had twenty-four hours to get my rifles back and I was 

going to the sheriff ." Cartwright further testified that when 

Pat McCully approached the car he had a pistol in his left hand. 

He also said that he saw Mike McCully with a rifle prior to the 

shooting. Cartwright became "scared" and he told Pamela that he 

"was getting the hell out of there ." Pamela responded, "the hell 

you are." Then the struggle for his .22 caliber rifle ensued. 

The defendant testified that he attempted to drive away but the 

car was spinning in the mud. He did not remember firing any 

shots but he recalls empty casings hitting him in the face. He 

further testified that the stock of the gun was stuck in the 

steering wheel as he was driving near the cattle guard and two 

shots went off. 

After leaving the McCully residence Cartwright stopped his 

car near a gravel pit located 3/4 of a mile from the Trego store. 

Cartwright testified that he stopped because he had to "go to the 

bathroom real bad." The State offered another explanation for 

the stop at the gravel pit; that the defendant stopped to shoot 

his own car in an attempt to confuse the issues. The defendant's 
car sustained a shattered front passenger window and a hole in 

the left rear section of the roof. Two ballistics experts 

testified that the hole in the roof was caused by a .22 caliber 

bullet. Furthermore, two spent .22 caliber cartridges were found 

by the gravel pit. Testing showed that these had been fired from 

Cartwrightls rifle. 

A small pile of glass was found about 3/4 of a mile from the 

gravel pit. It was analyzed and compared to glass samples taken 

from the window and interior of Cartwrightls car. The two 

samples had identical chemical and physical properties. The 

State contends that Cartwright left the gravel pit, went further 

down the road and shot his own window out. No glass was found at 

the McCully residence . Shortly after the incident the defendant turned himself over 

to the Eureka police; he was "scared" and thought the McCullys 

would be coming after him. At the police station the defendant 

made a taped statement to Deputy County Attorney Shaun Thompson 

and Detective Rodney Deboer. Prior to making the statement, 

Cartwright was informed of his "Miranda rights," signed a waiver, 

and answered questions for the investigators . The defendant raises three issues: (1) whether the District 

Court erred in failing to suppress statements made to investigators shortly after the incident; (2) whether the District Court 

erred by refusing the defendant's offered jury instructions on 

self-defense; and (3) whether it was proper for the District 

Court to refuse offered character evidence of the victim and her 

f arnily. 

The defendant claims that certain portions of the taperecorded statement made by him shortly after the shooting should 

not have been allowed to impeach his testimony. Apparently the 

State was concerned of possible Miranda violat ions. In Miranda 

v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 

the United States Supreme Court ruled that if an accused asks to 

consult with an attorney, police questioning must stop. In this 
case it is unclear whether the defendant effectively asserted his 

right to counsel during the interrogation; and if he did, it is 

equally unclear whether or not he waived that right. At a 

suppression hearing on this matter, the District Court ruled that 

the defendant did not effectively assert his right to counsel, 

and "assuming arguendo that the defendant effectively asserted 

his right to counsel, he waived his right to counsel by desiring 

to proceed with the interview." However, we need not address 

these issues because the taped statement was not used for the 

prosecution's case-in-chief. Various portions were used but only 

for impeachment purposes. This is a critical distinction which 

will become evident shortly. First, it is necessary to show how 

the taped statement was used. 

The defendant testified that he did not recall when the 

passenger window of his car was shattered. The prosecution 

played the £01-lowing portion of the taped statement: 

"A. I was taking off as it happened and I had 

my .22 automatic like this, and I grabbed like 

that, and I turned and that's when my window 

went out." 

Testiinony of the defendant indicated that Mike McCully came 

out of the house with a rifle during the struggle for his .22 

caliber rifle. Two portions of the taped statement were played 

which showed that he was first aware of Mike McCully with the 

rifle when he was leaving, after the shooting had taken place. 

"A. I think Pam was hanging on to the window 

part -- yeah, my window part; my window was 

rolled down and she was hanging on there. I 

fired once or twice then when I was leaving, 

and I went down and I seen the other brother 

come out with a rifle with a scope on and I 

fired once or twice again that way. 

"Q. His name is Pat? A. Pat. 

"Q. And -- A. Blond-haired guy, and the 

other brother's name is Mike, and Mike, he ran 

back to the house and he -- as I was going 

down the hill from the house, he come out with 

a rifle with a scope on it cause I looked like 

that and he's going like this." 

The defendant also testified that he heard a loud shot just 
after he saw Mike McCully with the rifle. The following portion 

was used in rebuttal. 

"Q. Which brother? A. Mike. 

"Q. Other than your rifle being fired, do you 

recall any other weapons being fired? A. 

NO. 'I 

Finally, the defendant testified that he did not honk his 

horn when he drove into the yard. The following portion of the 

taped statement indicates otherwise. 

"Q. When you pulled up, did you beep your 

horn or something? A. Right. 

"Q. You beeped your horn? A. Yes. 

"Q. About how many times did you beep your 

horn? A. Three -- about two times." 

After the preceding portions of the statement were admitted 

the entire statement was played to the jury at the request of the 

defense. The record makes clear that the objection of the defendant was limited to only those portions of the statement set out 

above. 

This Court has followed the rule of two United States Supreme 

Court cases. First, in Harris v. New York (1970), 401 U.S. 222, 

91 S.Ct. 643, 28 L.Ed.2d 1, the Court held that although evidence is inadmissible in the prosecution's case-in-chief because 

of Miranda violations, such evidence is not barred for all 

purposes. In Harris, the defendant had made statements to the 

police after being taken into custody. A transcript of the 

statement shows that he was not informed of his right to counsel. 

The prosecution conceded the Miranda violation but still used 

the statement for impeachment purposes. The Court in upholding 

the conviction stated : 

"Miranda barred the prosecution from making 

its case with statements of an accused made 

while in custody prior to having or effectively waiving counsel. It does not follow 

from Miranda that evidence inadmissible 

against an accused in the prosecution's casein-chief is barred for all purposes, provided 

of course that the trustworthiness of the evidence satisfies legal standards." Harris, 401 

U.S. at 224. 

There is a very good reason for such a rule. The Miranda 
shield should not allow an accused to commit perjury. As the 

Court noted: " [el very criminal defendant is privileged to testify 

in his own defense, or refuse to do so. But that privilege cannot be construed to include the right to commit perjury." 

Harris, 401 U.S. at 225. 

Thus Harris allows the use of statements made by an accused 

for impeachment purposes notwithstanding Miranda violations. Of 

course there is a danger here. What is to prevent police 

investigators from willf ully violating the principles of Miranda, 

knowing that evidence obtained can still be used for impeachment? 

Harris touched on this problem with the language: "provided of 

course that the trustworthiness of the evidence sat is£ ies legal 

standards." Harris, 401 U.S. at 224. The Supreme Court addressed 

the issue in the later case of Oregon v. Hass (1975)r 420 U.S. 

714, 95 S.Ct. 1215, 43 L.Ed.2d 570. There the Court restated 

the rule of Harris and went on to say " [ilf, in a given case, the 

officer's conduct amounts to abuse, that case, like those 

involving coercion or duress, may be taken care of when it arises 

measured by the traditional standards for evaluating voluntariness and trustworthiness." Hass, 420 U.S. at 723. Thus, 

Hass refined Harris by emphasizing the safeguard. The rule of 

Harris will not allow coercion or duress on the part of police 

investigators. 

As noted above, this Court has adopted the rationale of 

Harris and Hass and is not persuaded to change a sound rule. In 

State v. Smith (1975), 168 Mont. 93, 541 P.2d 351, we cited and 

agreed with both Harris and Hass. We reaffirmed our position in 

the later case of State v. Buckley (1976), 171 Mont. 238, 557 

P.2d 283, where we upheld the use of testimony at a pretrial 

suppression hearing to impeach the defendant at trial. 

The defendant claims that the statements given shortly after 

the shooting did not meet standards of trustworthiness for 

several reasons; "the defendant had just arrived from the 

McCullys. He had blood on his shirt. He had glass splattered 
over himself and his car and he thought that the McCullys would 

be coming after him." However, these facts do not suggest 

pressure "greater than that on any person in like custody or 

under inquiry by any investigating officer." Hass, 420 U.S. at 

723. Furthermore, there are no facts in this case to suggest any 

coercion or duress. The defendant came willingly to the Eureka 

police station. He was read his Miranda rights and signed a 

waiver. He agreed to make a statement. He was told that he 

could stop at any time. The investigating officers were very 

careful to make sure that he understood his rights. 

The defendant seems to be placing primary emphasis on a 

recent case which holds that once a suspect invokes his right to 

counsel , questioning must stop. This case is Edwards v. 

Arizona (1981), U.S. , 101 S.Ct. 1880, 68 L.Ed.2d 378. 

In Edwards the defendant was arrested, taken to police headquarters, and informed of his Miranda rights. He agreed to submit to questioning and learned that another suspect had 

implicated him. He then gave a taped statement denying any 

involvement. Then he sought to make a deal. Negotiations broke 

down and Edwards requested an attorney before any deal was made. 

The next morning, after listening to the taped statement of the 

suspect who had implicated him, Edwards admitted involvement in 

the crime. The trial court admitted the confession as evidence 

and Edwards was convicted. The Arizona Supreme Court upheld the 

conviction finding that the waiver and confession were voluntarily and knowingly made. The United States Supreme Court 

reversed. 

The defendant's reliance on Edwards is ill-founded. The case 

does not create a new rule to cast doubt on the holdings of 

Harris and Hass. Edwards restates the rule of Miranda; that if 

an individual requests an attorney, questioning must stop. The 

case goes on to address the question of waiver, holding that "a 

valid waiver of that right cannot be established by showing only 

that he responded to further custodial interrogation even if he 
has been advised of his rights." Edwards, 101 S.Ct. at 1884. 

Thus the interrogation must cease "unless the accused himself 

initiates further communication, exchanges or conversations with 

the police." Edwards, 101 S.Ct. at 1885. 

It is clear that the United States Supreme Court did not 

intend to change the rule of Harris or Hass, rather they intended 

to devise and define a test concerning waiver of the right to 

counsel. The question before this Court is not a waiver question 

and we do not intimate an answer to any such question. Edwards 

is of no help. Harris and Hass and our own cases of Smith and 

Buckley are on point. The District Court did not err by allowing 

portions of the statement for impeachment. 

Next the defendant claims he was entitled to jury instructions on self-defense. Defendant correctly cites the fundamental 

rule found in Buckley, that "the district court s instructions 

must cover every issue or theory having support in the evidence, 

and the inquiry of the district court must only be whether or not 

any evidence exists in the record to warrant an instruction. . .I1 

Buckley, 171 Mont. at 242, 557 P.2d at 285; State v. Gopher 

(1981) , Mont . , 633 P.2d 1195, 38 St.Rep. 1521; State v. 

Sorenson (1980), ---- Mont . ---- , 619 P.2d 1185, 37 St.Rep. 

1834; State v. Bouslaugh (1978), 176 Mont. 78, 576 P.2d 261. The 

Montana legislature has statutorily adopted rules for the defense 

of self defense or more accurately, justifiable use of force. As 

a general rule, 

"A person is justified in the use of force or 

threat to use force against another when and 

to the extent that he reasonably believes that 

such conduct is necessary to defend himself or 

another against such other's imminent use of 

unlawful force. However, he is justified in 

the use of force likely to cause death or 

serious bodily harm only if he reasonably 

believes that such force is necessary to prevent imminent death or serious bodily harm to 

himself or another or to prevent the commission of a forcible felony." Sect ion 

45-3-102, MCA. 

However the use of force described above is not available to 

an aggressor. If an individual is an aggressor the following 
rule applies. 

"The justification described in 45-3-102 

through 45-3-104 is not available to a person 

who : 

"(1) is attempting to commit, committing, or 

escaping after the commission of a forcible 

felony; or 

"(2) purposely or knowingly provokes the use 

of force against himself, unless; 

"(a) such force is so great that he 

reasonably believes that he is in imminent 

danger of death or serious bodily harm and 

that he has exhausted every reasonable means 

to escape such danger other than the use of 

force which is likely to cause death or 

serious bodily harm to the assailant; or 

"(b) in good faith, he withdraws from physical contact with the assailant and indicates 

clearly to the assailant that he desires to 

withdraw and terminate the use of force but 

the assailant continues or resumes the use of 

force." Section 45-3-1051 MCA. 

The Commission's comments to 45-3-105 make it clear that "the 

preceding sections of this chapter has assumed that the person 

using force. . .has not otherwise provoked such force. This section concerns the much more limited right which a person has to 

defend himself, when he has committed an unlawful act or otherwise provoked the use of force ." 

The facts in this case clearly indicate that the defendant 

was an aggressor. After finding his guns had been taken he drove 

fifty miles with a loaded .22 caliber rifle. Before leaving he 

told a houseguest that "he was going to go up there and get his 

guns and shoot her." While at the McCully residence he 

threatened Pamela McCully by stating "you have 24 hours to live." 

These facts certainly establish the defendant as an aggressor, 

consequently the a£ f irmative defense of justifiable use of force 

would apply only in two situations. First, if such force was so 

great that he reasonably believed he was in danger of death or 

serious bodily harm and he exhausted every reasonable means of 

escape. Here the defendant stayed in his car with the motor 

running. He was parked for an easy exit. Even if we assume the 

defendant was in fear of his life or being seriously injured, 
which seems doubtful in view of the fact that when Pamela McCully 

was shot, at most she was armed with a broken cue stick, it is 

clear that he did not exhaust his means of escape. Prior to the 

actual shooting the defendant had ample opportunity to leave. In 

his own words he was "scared" even before arriving at the 

McCullys, yet during the ten to fifteen minutes he was there he 

made no attempt to leave. 

Second, the defense would have been available if in good 

faith he withdraws from physical contact and clearly indicates a 

desire to terminate the use of force. Clearly the facts will not 

support the defendant's withdrawal. After Pat McCully was shot, 

he could have devoted all of his energies to escape and 

withdrawal from the fight, rather he turned the gun on Pamela and 

fired. Furthermore, when he reached the cattle guard he fired 

several more shots at the house. Such actions are certainly not 

indicative of an intent to withdraw. We find no error in the 

trial court's refusal to allow an instruction on self -defense. 

Finally the defendant appeals the trial court's refusal to 

allow evidence concerning threats made by the victims and their 

family. The defendant's offer of proof shows the intention to 

introduce the following : 

1. That Pamela McCully made threats toward the defendant, 

stating that she was going to kill him; 

2. That he had seen Mike and Pat McCully fighting, that Pat 

was kicking Mike in the head and Pat had to be restrained from 

further acts of violence; and that at that time Pat actually 

stepped on Pam's foot and twisted her foot to the point where you 

could hear a snap in the foot area; 

3. That an incident occurred in a bar and both Pat and Mike 

were present, that Mike made physical contact with the defendant 

and made the comment "some day Joe, some day;" 

4. That the day before the shooting incident, Pamela McCully 

had followed him with a gun, she was in her car and she was brandishing a gun at the defendant; and 
5. That recently Retha McCully had threatened the defendant, 

saying that if she ever caught the defendant with Pamela again 

she would blow his head off or have one of the boys do it. 

A recent case is directly on point. In State v. Breitenstein 

(1979)r 180 Mont. 503, 591 P.2d 233, we had a similar situation. 

The defendant was convicted of aggravated assault for drawing a 

.22 caliber pistol and threatening to blow the victim "full of 

holes like a sieve." Long before this incident, the defendant 

and victim had been on poor terms. The defendant wanted to 

introduce evidence of past threats made by the victim and his 

mother-in-law. The trial court rejected the evidence for lack of 

foundation. We affirmed. The applicable rule of evidence is 

Rule 404(a) (2), Mont.R.Evid., which states: 

" (a) Character evidence generally. Evidence 

of a person's character or trait of his 

character is not admissible for the purpose of 

proving that he acted in conformity therewith 

on a particular occasion, except: 

" (2) Character of Victim. Evidence of a pertinent trait of character of the victim of the 

crime offered by an accused, or by the prosecution to rebut the same, or evidence of a 

character trait of peacefulness of the victim 

offered by the prosecution in a homicide case 

or in an assault case where the victim is 

incapable of testifying to rebut evidence that 

the victim was the first aggressor ." 

The comments to the rules are more succinct: " [u] nder 

Montana case law the accused must first lay a foundation that he 

acted in self defense before he can introduce evidence of the 

violent character of the victim." An indispensible component to 

the foundation of self-defense was stated in State v. Logan 

(1970), 156 Mont. 48, 65, 473 P.2d 833, 842: " [ulntil such time 

as defendant took the stand and admitted the killing, the issue 

of self defense was not joined at the trial. Thus, no foundation 

existed for the admission of the testimony." In this case too, 

the proper foundation was absent. The defendant did not admit 

the killing, rather he states that he does not remember firing 

any shots, only empty casings hitting him in the face. The trial 
court did not err in refusing the offered character evidence. 

For the reasons stated herein, we affirm the District Court's 

judgment. 

u Justice 

We concur: 

8d8. ~4 

Chief Justice 

/ Justices 
Mr. Justice Frank B. Morrison, Jr., specially concurring: 

I concur in the result but not with the entire rationale 

of the majority opinion. 

With respect to Issue No. 2, concerning whether it was 

error to deny defendant's offered instruction on selfdefense, I would reach the same result, but for a different 

reason. The defendant here did not rely upon self-defense. 

Defendant's version of the incident was that the gun accidently 

discharged. Under these circumstances, it was not error for 

the District Court to refuse the self-defense instruction. 

I take issue with the majority's position that the 

defendent was not entitled to a self-defense instruction 

because defendant was shown to be the aggressor. Under 

defendent's version of the facts, he was not the aggressor 

and would be entitled to an instruction on his theory. 

However, because he did not rely upon self-defense it was 

not error for the trial court to refuse to give such an 

instruction. 

I would affirm. 

I join in the specially concurring opinion of Justice 

Morrison: